Citation Nr: 1026468
Decision Date: 07/15/10 Archive Date: 07/28/10
DOCKET NO. 07-34 817A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho
THE ISSUES
1. Entitlement to a disability evaluation in excess of 40
percent for service-connected status-post L5-S1 discectomy,
including degenerative disc disease of the thoracic spine.
2. Entitlement to a disability evaluation in excess of 40
percent for service-connected sciatica of the right leg,
associated with status-post L5-S1 discectomy.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
E. McGuire, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1993 to October 1998.
This matter is before the Board of Veterans' Appeals (Board) from
an April 2006 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Boise, Idaho.
The Board notes that, pursuant to a January 2009 correspondence,
the Veteran revoked the American Legion as his representative.
In March 2009, he submitted a VA Form 21-22 (Appointment of
Veterans Service Organization as Claimant's Representative),
appointing Veterans of Foreign Wars of the United States as his
representative.
The Board notes that additional service treatment records have
been submitted since the last adjudication by the RO in an August
2009 supplemental statement of the case. The Board finds that
records dating from the Veteran's period of service are not
pertinent to the increased rating claims on appeal, so its
referral to the agency of original jurisdiction (AOJ) for review
is unnecessary. 38 C.F.R. § 20.1304 (c) (2009).
The Board notes that the Veteran has filed several requests for
reconsideration of RO decisions. In October 2006, he requested a
reconsideration of an October 2006 rating decision which
continued a 10 percent rating for a service-connected left leg
disability. In April 2008, the he requested a reconsideration of
a January 2008 rating decision which granted service connection
and a 10 percent rating for depression and continued a 40 percent
rating for the low back disability currently on appeal.
Likewise, in an August 2008 statement, the Veteran requested
reconsideration of a May 2008 rating decision which continued the
40 percent rating for the low back disability on appeal.
38 C.F.R. § 20.201 (2009) defines an NOD as "[a] written
communication from a claimant or his or her representative
expressing dissatisfaction or disagreement with an adjudicative
determination by the [RO] and a desire to contest the result."
It "must be in terms which can be reasonably construed as
[expressing] disagreement with that determination and a desire
for appellate review." Moreover, the Board determines de novo
whether a document is an NOD. See Fenderson v. West, 12 Vet.
App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996).
Furthermore, the United States Court of Appeals for the Federal
Circuit (Federal Circuit) in Gallegos v. Principi, 283 F.3d 1309,
1314 (Fed. Cir. 2002) held that, after considering "the pro-
claimant nature of the veteran adjudication system" that
38 C.F.R. § 20.201 is not procedurally defective, arbitrary or
capricious in substance, or manifestly contrary to 38 U.S.C.A.
§ 7105 or any other relevant statute and "under § 20.201, a
valid NOD must contain 'terms that can be reasonably construed as
disagreement with that determination and a desire for appellate
review.'" The Federal Circuit also held that the requirement
that the NOD "include terms that can be reasonably construed as
a desire for appellate review, . . . "serves administrative
efficiency by distinguishing a request for Board review from
other routine communications in the wake of a VA decision.
Assuming the veteran desires appellate review, meeting the
requirement of § 20.201 is not an onerous task." Id.
With the above criteria in mind, the Board finds that the
Veteran's requests for reconsideration cannot act as NODs to
their respective rating decisions because they do not "include
terms that can be reasonably construed as a desire for appellate
review." The Veteran, in his October 2006, April 2008 and
August 2008 submissions, specifically stated that he wanted the
RO to reconsider the rating decisions of October 2006, January
2008 and May 2008. Specifically, in his April 2008 request, the
Veteran plainly requested that the RO not process his request as
an NOD. He stated that he wanted a reconsideration based upon
new evidence. The Veteran expressed the same sentiment in his
August 2008 submission. In contrast, in the case of the issues
currently on appeal before the Board, the Veteran filed a notice
of disagreement in July 2006, specifically stating that he wanted
to file a notice of disagreement with the rating decision
currently under review.
The submissions discussed above plainly show that the Veteran has
actual knowledge of the differences between notices of
disagreement and requests for reconsideration. Therefore, the
Board finds that the record does not include any writing from the
Veteran or his attorney in the one year period following the
receipt of notice of the October 2006 or January 2008 rating
decisions involving disability ratings for depression and a left
leg disability, that could act as a NOD as to those issues.
38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309, 1314
(Fed. Cir. 2002). Accordingly, a remand by the Board is not
required. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999)
(holding that, where a notice of disagreement is filed with a
claim and no SOC has been issued, the Board should remand, not
refer, that issue to the RO to issue an SOC).
The issue of entitlement to a disability evaluation in excess of
40 percent for service-connected sciatica of the right leg,
associated with status-post L5-S1 discectomy is addressed in the
REMAND portion of the decision below and is REMANDED to the RO
via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
1. The competent evidence of record shows that the Veteran has
not demonstrated unfavorable ankylosis of the entire
thoracolumbar spine or incapacitating episodes, unrelated to
surgery, having a total duration of at least six weeks during a
12-month period during the appeal period.
CONCLUSION OF LAW
1. The criteria for an evaluation higher than 40 percent have
not been met or approximated for the Veteran's service-connected
status-post L5-S1 discectomy, including degenerative disc disease
of the thoracic spine. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b)
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a,
Diagnostic Code 5243 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA with respect to its duty to notify and assist a
claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R. § 3.159 (2009). Under the VCAA, upon receipt of
a complete or substantially complete application for benefits, VA
is required to notify the Veteran and his representative, if any,
of any information and medical or lay evidence necessary to
substantiate the claim. The United States Court of Appeals for
Veterans Claims (Court) has held that these notice requirements
apply to all five elements of a service connection claim, which
include: (1) Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability; (4)
degree of disability; and (5) effective date of the disability.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VA law and regulations also indicate that part of notifying a
claimant of what is needed to substantiate a claim includes
notification as to what information and evidence VA will seek to
provide and what evidence the claimant is expected to provide.
38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(a)-(c) (2009).
VCAA notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on a
claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).
For an increased-compensation claim, VCAA requires, at a minimum,
that VA notify the claimant that the evidence demonstrates a
worsening or increase in severity of the disability. Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008). The notice must also
provide examples of the types of medical and lay evidence that
the claimant may submit (or ask the Secretary to obtain) that
demonstrates a worsening of increase in severity of the
disability and the effect that worsening has on the claimant's
employment and daily life, e.g., competent lay statements
describing symptoms, medical and hospitalization records, medical
statements, employer statements, job application rejections, and
any other evidence showing an increase in the disability or
exceptional circumstances relating to the disability. Id. VA
should also provide at least general notice of any specific
measurement or testing requirements needed for an increased
rating if the Diagnostic Code contains rating criteria that would
not be satisfied by demonstrating only a general worsening or
increase in severity of the disability and the effect of that
worsening on the claimant's employment and daily life. Id.
The Board finds that the Veteran, in an October 2008
correspondence, was provided adequate 38 U.S.C.A. § 5103(a)
notice, in accordance with the Court's holding in Vazquez-Flores,
supra, and Dingess v. Nicholson, 19 Vet. App. 473 (2006).
However, even if the Veteran was not provided adequate
38 U.S.C.A. § 5103(a) notice in accordance with the Court's
holding in Vazquez-Flores, Federal Circuit has reversed this
decision. See Vazquez-Flores v. Shinseki, No. 2008-7150, 2009 WL
2835434 (Fed. Cir. Sept. 4, 2009). Thus, insofar as the notice
described by the Veteran's Court in Vazquez-Flores requires VA to
notify a Veteran of alternative diagnostic codes or potential
"daily life evidence," the judgment was vacated, and any
failure by the AOJ to provide such evidence is harmless error.
The scope of VA's duty to assist will depend on the facts and
circumstances of an individual case, but typically, the duty to
assist requires VA to obtain relevant records from federal
agencies, to make reasonable efforts to obtain relevant records
not in the custody of federal agencies, and in certain
circumstances, to provide a medical examination or obtain a
medical opinion. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R.
§ 3.159 (2009).
The RO has satisfied VA's duty to assist. The RO has obtained
the Veteran's VA medical center (VAMC) records, private treatment
records and has provided VA examinations in July 2005, February
2006, and January 2008. In that regard, when VA undertakes to
provide a VA examination or obtain a VA opinion, it must ensure
that the examination or opinion is adequate. Barr v. Nicholson,
21 Vet. App. 303, 312 (2007). The Board finds that the VA
examinations obtained in this case are, collectively, more than
adequate, as all of the examiners provided detailed assessments
of the current severity of the Veteran's disabilities. All
examinations included the Veteran's subjective complaints about
his disabilities and the objective findings needed to rate the
disabilities.
The Veteran has not made the RO or the Board aware of any other
evidence relevant to his appeal, and no further development is
required to comply with the duty to assist the Veteran in
developing the facts pertinent to his claim.
II. Increased Rating
Legal Criteria
Disability ratings are determined by applying the criteria set
forth in VA's Schedule for Rating Disabilities, which is based on
the average impairment of earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Where an increase in an existing disability
rating based on established entitlement to compensation is at
issue, the present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the
factual findings show distinct time periods where the service-
connected disability exhibits symptoms that would warrant
different ratings, the Board must assign staged ratings. See
Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (finding that
there was no basis for drawing a distinction between initial
ratings and increased-rating claims for the purpose of applying
staged ratings).
Individual disabilities are assigned separate diagnostic codes.
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more nearly
approximates the criteria required for that rating; otherwise,
the lower evaluation will be assigned. 38 C.F.R. § 4.7. All
benefit of the doubt will be resolved in the Veteran's favor. 38
C.F.R. § 4.3.
Spine
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system, to
perform the normal working movements of the body with normal
excursion, strength, speed, coordination, and endurance.
38 C.F.R. § 4.40. It is essential that the examination on which
ratings are based adequately portray the anatomical damage, and
the functional loss, with respect to all these elements. Id.
The functional loss may be due to absence of part, or all, of the
necessary bones, joints and muscles, or associated structures, or
to deformity, adhesions, defective innervation, or other
pathology, or it may be due to pain, supported by adequate
pathology and evidenced by visible behavior of the claimant
undertaking the motion. Id. Weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. Id. Painful, unstable,
or malaligned joints, due to healed injury, are entitled to at
least the minimum compensable rating for the joint. 38 C.F.R.
§ 4.59. The factors involved in evaluating and rating
disabilities of the joints include weakness, fatigability,
incoordination, restricted or excess movement of the joint, or
pain on movement. 38 C.F.R. § 4.45, DeLuca v. Brown, 8 Vet. App.
202 (1995).
On September 26, 2003, the regulations governing spine
disabilities changed. Since the Veteran filed his current
increased rating claim in 2005, after the regulation change, this
decision addresses only the new regulations.
All disabilities of the cervical and thoracolumbar spine are to
be rated under the General Rating Formula for Diseases and
Injuries of the Spine (General Rating Formula), unless the
Veteran is service-connected for intervertebral disc syndrome.
In that case, the disability is evaluated under either the
General Rating Formula or under the Formula for Rating
Intervertebral Disc Syndrome Based on Incapacitating Episodes,
whichever results in a higher rating. See 38 C.F.R. § 4.71a,
Diagnostic Codes 5235-5243.
In regard to the first method of evaluation (total duration of
incapacitating episodes over the past 12 months), the amended
criteria provide that a 60 percent rating is warranted if the
total duration is at least six weeks during the past 12 months.
38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating
episode is a period of acute signs and symptoms due to
intervertebral disc syndrome that requires bed rest prescribed by
a physician and treatment by a physician. Id. The term
"chronic orthopedic and neurologic manifestations" was defined
as "orthopedic and neurologic signs and symptoms resulting from
intervertebral disc syndrome that are present constantly, or
nearly so." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).
In regard to the second method of evaluation (General Rating
Formula for Diseases and Injuries of the Spine), a 50 percent
evaluation is assigned for unfavorable ankylosis of the entire
thoracolumbar spine, and a 100 percent disability rating is
assigned for unfavorable ankylosis of entire spine. 38 C.F.R. §
4.71a, General Rating Formula.
Normal flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral flexion
are zero to 30 degrees, and left and right lateral rotation are
zero to 30 degrees. The normal combined range of the
thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2).
Any associated neurologic abnormalities, including, but not
limited to bowel or bladder impairment, are to be evaluated
separately under an appropriate diagnostic code. 38 C.F.R. §
4.71a, General Rating Formula, Note (1). Here, disability
ratings for associated sciatica of the legs have been assigned.
When rating degenerative arthritis of the spine, in addition to
consideration of rating under the General Rating Formula for
Diseases and Injuries of the Spine, rating for degenerative
arthritis under Diagnostic Code 5003 should also be considered.
Diagnostic Code 5003 provides that degenerative arthritis that is
established by X-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes for
the specific joint or joints involved.
When there is no limitation of motion of the specific joint or
joints that involve degenerative arthritis, Diagnostic Code 5003
provides a 20 percent rating for degenerative arthritis with X-
ray evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, with occasional incapacitating
exacerbations, and a 10 percent rating for degenerative arthritis
with X-ray evidence of involvement of 2 or more major joints or 2
or more minor joint groups. Note (1) provides that the 20
percent and 10 percent ratings based on X-ray findings will not
be combined with ratings based on limitation of motion.
38 C.F.R. § 4.71a.
The RO first granted service connection and a 10 percent
disability rating for a low back disability effective October
1998. The rating was increased to 40 percent effective February
2000. The Veteran filed his current increased rating claim in
April 2005. The RO continued the 40 percent rating in an April
2006 rating decision. The Veteran contests this rating
assignment. The Board notes that the Veteran has been granted
two temporary 100 percent ratings for convalescence after surgery
under 38 C.F.R. § 4.30. The Veteran has not appealed these
rating assignments, and they are not before the Board. The
Veteran's low back disability is rated under Diagnostic Code
5243.
Having considered the evidence of record, the Board finds that
the Veteran is not entitled to an increased evaluation for any
portion of the appeal period for his service-connected
thoracolumbar spine disability. In this regard, the Board notes
that the Veteran's disability manifested during the appeal period
by subjective complaints of daily low back pain and problems
sitting for extended periods. However, there is no evidence that
the Veteran had unfavorable ankylosis of the entire thoracolumbar
spine. There has been no notation of ankylosis during any of the
VA examinations conducted during the appeal period. Therefore,
he is not entitled to a rating higher than 40 percent under the
General Rating Formula.
Here, the evidence supports a finding that the Veteran has
degenerative arthritis for purposes of evaluation under
Diagnostic Code 5003. He has been diagnosed with degenerative
disc disease of the thoracolumbar spine. Since in this case
degenerative arthritis is rated on the basis of limitation of
motion, a rating under Diagnostic Code 5003 likewise does not
provide for a rating in excess of 40 percent.
The Board has also considered whether the evidence of record
demonstrates entitlement to a rating in excess of 40 percent
during the appeal period under Diagnostic Code 5243 pertaining to
intervertebral disc syndrome. With regard to applying the
Formula for Rating Intervertebral Disc Syndrome based on
Incapacitating Episodes, the Board notes that there is no
indication in the medical evidence of record for this time period
that the Veteran has experienced any incapacitating episodes,
other than those for which he was already assigned a temporary
100 percent evaluation for convalescence.
The Board notes that, in an October 2009 submission, the Veteran
questioned why the periods after his two surgeries did not meet
the standard for incapacitating episodes for purposes of
establishing an increased rating. The Veteran has been
compensated for these two periods of acute and transitory
incapacitation following surgery by way of temporary 100 percent
ratings under 38 C.F.R. § 4.30. To award a separate 60 percent
rating under Diagnostic Code 5243 for the same symptoms of
transitory incapacitation already compensated under 38 C.F.R.
§ 4.30 would be, in effect, compensating the Veteran twice for
the same symptomatology.
To the extent that the Veteran has suffered incapacitating
episodes at other times throughout the course of this appeal, the
Board does not find the medical evidence of record reflects that
he has been prescribed bed rest by a physician. Specifically,
medical evidence of the claimed period of bed rest from March to
May of 2005 is not of record.
The Board notes that the record contains objective evidence of
radiculopathy, and the RO assigned two disability ratings under
Diagnostic Code 8620 for radiculopathy of the lower extremities.
See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The
record is silent as to any additional neurologic manifestations.
Accordingly, the Board finds that the Veteran does not
demonstrate neurologic abnormality to warrant a separate
evaluation under an appropriate diagnostic code. 38 C.F.R. §
4.71a, General Rating Formula, Note (1).
The Board has also considered the Veteran's complaints of pain.
Upon VA examination in January 2008, the examiner noted pain on
range of motion in the lumbar spine. The Veteran demonstrated
range of motion of 25 degrees of flexion, eight degrees
extension, 30 degrees right rotation, 28 degrees left rotation
and 21 degrees of lateral flexion bilaterally. The examiner
stated that it was within reason to believe that the Veteran
would lose between 40 and 45 degrees of his range of motion,
strength, coordination and endurance associated with repetitive
movement flares of the lumbar spine. However, the pain and
related symptoms are not shown to warrant an increase above the
40 percent rating currently in effect. The Veteran's range of
motion, even when factoring in the loss of 45 degrees of total
motion would still fall within the 40 percent criteria, as the
decreased motion does not show unfavorable ankylosis of the
thoracolumbar spine or entire spine. Thus, there is no basis for
granting an increased rating based on DeLuca v. Brown, 8 Vet.
App. 202 (1995); 38 C.F.R. §§ 4.7, 4.45, 4.59.
The percentage ratings assigned by the VA Schedule for Rating
Disabilities represent the average impairment in earning capacity
resulting from a service-connected disability. 38 C.F.R. § 4.1.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time from
exacerbations or illness proportionate to the severity of the
several grades of disability. Id. In cases where either a
claimant or the evidence of record suggests that a schedular
rating may be inadequate, the Board must specifically adjudicate
the issue of whether referral for an extraschedular rating as
outlined in 38 C.F.R.
§ 3.321(b)(1) is warranted. Thun v. Peake, 22 Vet. App. 111, 115
(2008).
Here, the Board finds that the ratings criteria reasonably
describe the claimant's disability level and symptomatology.
During his January 2008 VA examination, the Veteran reported that
he works 40 hours per week and misses one to two days per month
because of back and leg pain. While the Veteran has claimed some
interference with employment, the assignment of an extraschedular
rating is not warranted, as the 40 percent rating assigned
contemplates some loss of working time. Hence, the Board is not
required to remand this matter to the RO for the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1) and 38 C.F.R.
§ 4.16(b) for assignment of an extraschedular evaluation.
The evidence does not show different disability pictures during
the appeal period which would warrant staged ratings. See Hart
v. Mansfield, 21 Vet. App. 505, 509-510 (2007).
In conclusion, for the reasons and bases expressed above, the
Board finds that a preponderance of the evidence is against the
Veteran's claim of entitlement to an increased rating for a low
back disability. See Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990).
ORDER
Entitlement to an evaluation higher than 40 percent for service-
connected status-post L5-S1 discectomy, including degenerative
disc disease of the thoracic spine, is denied.
REMAND
A review of the evidentiary record shows that the Veteran's most
recent peripheral nerves examination was conducted in August
2006. The Veteran received a VA examination for his service-
connected low back disability in January 2008. That examiner
noted complaints of radicular pain in the right leg but did not
carry out an examination of the right leg. In an October 2009
submission, the Veteran stated that his sciatica of the right leg
worsened after his back surgery in 2005, which resulted in
another surgery in 2007. He reported improvement in radicular
pain comparable to pre-2005 levels. However, he stated that he
has atrophy, numbness of his entire leg, weakness and pain.
As there has not been a VA examination for service-connected
radiculopathy of the right leg since August 2006, and the Veteran
has claimed that the severity of the disability has changed since
that time, the Board finds a new VA examination is necessary to
address the current severity of the disability. See Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992), citing to Green v.
Derwinski, 1 Vet. App. 121, 124 (1991) (fulfillment of VA's duty
to assist in a case involving a claim for higher rating includes
conducting a thorough and contemporaneous medical examination,
one which takes into account the records of prior medical
treatment, so that the evaluation of the claimed disability is a
fully informed one).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded an
appropriate medical examination by a VA
physician to ascertain the current severity
of his service-connected sciatica of the
right leg. All indicated evaluations,
studies, and tests deemed necessary by the
examiner should be accomplished.
The examiner should discuss the current
severity of the disability, including whether
paralysis and atrophy are present.
Please send the claims folder to the examiner
for review in conjunction with the
examination.
2. Thereafter, the Veteran's claim of
entitlement to a disability rating in excess
of 40 percent for sciatica of the right leg
should be readjudicated. If any benefit
sought on appeal remains denied, the Veteran
and his representative should be provided
with a supplemental statement of the case
that contains notice of all relevant actions
taken, including a summary of the evidence
and applicable law and regulations considered
pertinent to the issue. An appropriate
period of time should be allowed for response
by the Veteran and his representative.
Thereafter, the case should be returned to
the Board for further appellate
consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs